Keystone XL Pipeline Act

Floor Speech

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Mr. LEE. Madam President, excessive litigation under the Endangered Species Act has become an obstacle to the act itself and the good it promises to do for the American people.

According to the Department of Justice, more than 500 Endangered Species Act-related lawsuits have been filed or opened against the Federal Government since 2009. As a result, Federal agencies have to spend their time, their energy, and taxpayer-funded resources fighting lawsuits instead of protecting endangered species.

One of the primary reasons for this excessive litigation is the potential for massive awards of attorney's fees under section 11(g)4 of the Endangered Species Act. These awards can be granted regardless of whether the parties seeking the attorney's fee award prevails, and there is no limit on the hourly fee that can be collected. These attorney's fees can reach upward of $700 per hour. In one case involving a series of lawsuits related to the operation of hydroelectric power facilities in the Northwestern United States, attorney's fees were awarded in an amount totaling nearly $2 million--in one case lasting just a few years. Such lofty levels of compensation would be high even in a private law firm setting, even in a big city, but they are completely indefensible when one considers they are paid for by American taxpayers, often to well-funded activist organizations.

Excessive awards of attorney's fees also create perverse incentives for cottage industries of lawyers to sue the Federal Government in order to advance specific policies--policies that cannot be achieved through the legislative process and are therefore sought out by these very same lawyers in the courts. This is what many call a sue-and-settle strategy: Sue the Federal Government and then settle with the Federal Government. Achieve what you want to achieve and then get paid by the court without limit. Sue-and-settle is the dishonest, distorted practice of suing the Federal Government not to achieve a judicial outcome in court but to resolve the suit in a settlement with terms that advance narrow political ends, narrow political goals. The recent decision by the Fish and Wildlife Service to grant Gunnison sage-grouse protected status under the Endangered Species Act is the result of this precise sue-and-settle strategy.

Congress must put an end to policymaking by litigation, and it must do so by removing the incentives to engage in this kind of litigation. My amendment would do just that by bringing a citizen's suit provision of the Endangered Species Act into harmony with a similar provision of the Equal Access to Justice Act. The Equal Access to Justice Act limits awards for attorney's fees to $125 per hour and allows those awards to be granted only to prevailing parties. Any departure from this limit has to be approved by the judge based on some unique circumstance in that case. If such terms are acceptable for nearly every other type of lawsuit against the Federal Government, certainly they should be acceptable as applied to the Endangered Species Act. This simple fix would deter the frivolous lawsuits that so often end up in closed-door settlements with Federal agencies.

There is a lot of work to do to reform the implementation of the Endangered Species Act. This amendment is just one of many reforms I am developing with my colleagues in the Senate and our counterparts in the House of Representatives.

I ask for support on this amendment. Again, this is something that just brings into harmony section 11(g)4 of the Endangered Species Act with requirements that are already in existence, already on the books in connection with the Equal Access to Justice Act. We need those same limitations in this Endangered Species Act that already exist in the Equal Access to Justice Act. I ask all my colleagues to support this amendment and to help us resolve this problem that has crept into Federal law based on an inequity and imbalance in these two statutory regimes.

Madam President, I yield the floor, and I suggest the absence of a quorum.

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